EXHIBIT 6
AGREEMENT
This Agreement (this "Agreement") is entered into this 3rd day of
April, 2000, by and among Xxxxxx'x Furniture, Inc., a Delaware corporation
(the "Company"), General Electric Capital Corporation, a New York
corporation ("GECC"), and Japan Omnibus Ltd., an international business
corporation incorporated under the laws of the British Virgin Islands
("JOL").
RECITALS
GECC has purchased from the Company Notes dated (i) as of August
14, 1997, as amended as of March 31, 1999 and January 11, 2000, in the
outstanding principal amount of $5,501,091.20 (the "Initial Note"), (ii) as
of August 14, 1997, as amended as of March 31, 1999 and January 11, 2000,
in the outstanding principal amount of $2,500,000 (the "August 1997 Note")
and (iii) as of December 30, 1997, as amended as of March 31, 1999 and
January 11, 2000, in the outstanding principal amount of $2,500,000
(collectively with the Initial Note and the August 1997 Note, the "GECC
Notes").
JOL has purchased from the Company Notes dated (i) as of August
14, 1997, as amended as of March 31, 1999 and January 11, 2000, in the
outstanding principal amount of $500,000 (the "JOL August 1997 Note") and
(ii) as of December 30, 1997, as amended as of March 31, 1999 and January
11, 2000, in the outstanding principal amount of $1,000,000 (together with
the JOL August 1997 Note, the "JOL Notes"; the JOL Notes and the GECC Notes
are referred to herein collectively as the "Notes").
The Company, GECC and JOL are parties to a Supplemental
Securities Purchase Agreement dated as of August 14, 1997 (as amended on
September 14, 1999, December 14, 1999 and January 11, 2000, the
"Supplemental Purchase Agreement") relating to the Notes. Capitalized terms
used herein without definition have the meanings set forth in the
Supplemental Purchase Agreement.
The Company, GECC and JOL desire to amend certain provisions of
the Supplemental Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
1. Effective as of March 26, 2000, Sections 6.2(a), 6.2(b) and 6.2(c) of
the Supplemental Purchase Agreement shall be amended in their entirety to
read as follows:
(a) The Company will not permit its Consolidated Net Worth
at the end of any fiscal quarter to be less than the amount set forth below
for such fiscal quarter, provided that, upon any public or private offering
of capital stock of the Company for the Company's account, the amounts set
forth below for fiscal quarters subsequent to such offering shall be
adjusted upward by an amount equal to the net proceeds of any such offering
multiplied by 0.9:
Year Q1 Q2 Q3 Q4
---- -- -- -- --
1999 N/A N/A 8.8 MM 4.0 MM
2000 9.2 MM 11.2 MM 10.1 MM 10.8 MM
2001 17.5 MM 20.0 MM 22.0 MM 26.0 MM
2002 29.0 MM 32.0 MM 35.0 MM 40.0 MM
2003 40.0 MM 40.0 MM N/A N/A
(b) The Company and its Subsidiaries will not incur, create,
assume or permit to exist any Indebtedness at the end of any fiscal quarter
if such Indebtedness would result in a ratio of Consolidated Total
Indebtedness to Consolidated Net Worth of more than the amount for such
fiscal quarter indicated set forth below:
Year Q1 Q2 Q3 Q4
---- -- -- -- --
1999 N/A N/A 3.75 7.50
2000 3.20 2.85 3.30 2.85
2001 1.30 1.10 1.00 1.00
2002 1.00 1.00 1.00 1.00
2003 1.00 1.00 N/A N/A
(c) The Company will not permit its Fixed Charge Ratio at
the end of any fiscal quarter to be less than the amount set forth below
for such fiscal quarter:
Year Q1 Q2 Q3 Q4
---- -- -- -- --
1999 N/A N/A 0.75 0.005
2000 0.65 0.74 0.84 1.05
2001 1.20 1.20 1.20 1.35
2002 1.30 1.30 1.30 1.50
2003 1.40 1.40 N/A N/A
2. Effective as of March 26, 2000, the defined term "Consolidated Net
Worth" set forth in Section 11.1 of the Supplemental Purchase Agreement
shall be amended in its entirety to read as follows:
"'Consolidated Net Worth' shall mean the consolidated
stockholders' equity of the Company and its Subsidiaries determined in
accordance with generally accepted accounting principles consistently
applied (it being understood and agreed that (x) the Notes and any
other Subordinated Indebtedness which is not subordinated to the Notes
shall not be treated as equity for this purpose and (y) the Company's
Series A Convertible Preferred Stock, par value $0.001 per share,
shall be treated as equity for this purpose."
3. The Company acknowledges and agrees that irreparable damage would occur
in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that GECC and JOL shall be entitled to
an injunction to prevent breaches of the provisions of this Agreement and
to enforce specifically the terms and provisions hereof in any court of the
United States or any state thereof having jurisdiction, this being in
addition to any other remedy to which they may be entitled at law or
equity.
4. This Agreement may be executed in one or more counterparts, all of which
shall be considered one and the same agreement, and shall become effective
when one or more of the counterparts have been signed by each party and
delivered to the other parties, it being understood that all parties need
not sign the same counterpart.
5. This Agreement may be amended as to GECC, JOL and their successors and
assigns, and the Company may take any action herein prohibited, or omit to
perform any act required to be performed by it, if the Company shall obtain
the written consent of the registered holders of not less than 66 2/3% of
the aggregate outstanding principal amount of the Notes then held by GECC,
JOL and their successors or assigns; provided, however, that without the
written consent of the holder or holders of all Notes at the time
outstanding, no amendment to or waiver of any terms of this Agreement shall
change or affect the interest rate, maturity, principal amount, time of
payment, currency of payment, or the amount or allocation of any
prepayments of any Note. This Agreement may not be waived, changed,
modified, or discharged orally, but only by an agreement in writing signed
by the party or parties against whom enforcement of any waiver, change,
modification or discharge is sought or by parties with the right to consent
to such waiver, change, modification or discharge on behalf of such party.
Notwithstanding anything in this Agreement to the contrary, no provision of
this Section 5 may be waived, changed or modified.
6. All covenants and agreements contained herein shall bind and inure to
the benefit of the parties hereto and their respective successors and
assigns. This Agreement may be assigned by GECC or JOL to any transferee of
Notes. This Agreement may not be assigned by the Company.
7. The Company agrees to pay GECC and JOL for all reasonable outside legal
fees in connection with this Agreement.
8. This Agreement shall terminate upon the repayment in full of all amounts
of principal, interest and other sums due and payable on all Notes.
9. Each of the parties hereto agrees that it will make no statement
regarding the transactions contemplated hereby which is inconsistent with
the press release agreed to by the parties hereto. Notwithstanding the
foregoing, each of the parties hereto may, in documents required to be
filed by it with the Commission or other regulatory bodies, make such
statements with respect to the transactions contemplated hereby as each may
be advised is legally necessary upon advice of its counsel.
10. This Agreement shall be effective upon delivery of original signature
pages or facsimile copies thereof executed by each of the parties hereto.
11. The Company represents and warrants that other than the parties
executing this Agreement no consent, approval or waiver of any other person
or entity is required for the effectiveness or enforceability of this
Agreement.
12. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE PRINCIPLES
OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY CONSENTS TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES OF AMERICA, IN
EACH CASE LOCATED IN THE COUNTY OF NEW YORK, FOR ANY ACTION, PROCEEDING OR
INVESTIGATION IN ANY COURT OR BEFORE ANY GOVERNMENTAL AUTHORITY
("LITIGATION") ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREBY (AND AGREES NOT TO COMMENCE ANY LITIGATION
RELATING THERETO EXCEPT IN SUCH COURTS), AND FURTHER AGREES THAT SERVICE OF
ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT BY U.S. REGISTERED MAIL TO ITS
RESPECTIVE ADDRESS SET FORTH IN THIS AGREEMENT SHALL BE EFFECTIVE SERVICE
OF PROCESS FOR ANY LITIGATION BROUGHT AGAINST IT IN ANY SUCH COURT. EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY
OBJECTION TO THE LAYING OF VENUE OF ANY LITIGATION ARISING OUT OF THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IN THE COURTS OF THE
STATE OF NEW YORK OR THE UNITED STATES OF AMERICA, IN EACH CASE LOCATED IN
THE COUNTY OF NEW YORK, AND HEREBY FURTHER IRREVOCABLY AND UNCONDITIONALLY
WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH
LITIGATION BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. EACH OF THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS TO TRIAL BY
JURY IN CONNECTION WITH ANY LITIGATION ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly
authorized.
XXXXXX'X FURNITURE, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
and Chief Financial Officer
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxxx, Xx.
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx, Xx.
Title: Senior Vice President/
Department Operations Manager
JAPAN OMNIBUS LTD.
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
Title: Portfolio Manager
